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Court of AppealDismissedCivil Application E62 of 2022· [2022] KECA 880 (KLR)

Matendechere v Mutoko

Court of Appeal
22 July 2022
1,318 words in judgment
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The bottom line

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The Court of Appeal refused to forgive an 18-month appeal delay because the applicant gave no credible explanation and never showed what his appeal would argue.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Mumbi Ngugi JA) on an application under Rules 4 and 42 of the Court of Appeal Rules, 2010 for extension of time to file a notice of appeal and record of appeal against a ruling of the High Court at Kakamega (J.N. Njagi J) of 28th October 2020 in Kakamega High Court Succession Cause No. 558 of 2013. The applicant, the objector in the succession proceedings, sought to challenge the decision awarding the respondent a parcel of land. He explained the roughly 18-month delay by citing his advocate's inadvertence, loss of employment, relocation, the Covid-19 pandemic, and his inability to afford counsel. The court applied the Leo Sila Mutiso v Rose Hellen Wangari Mwangi principles: length of and reason for delay, prejudice to the respondent, and possibly the chances of success. It found the notice of appeal had been filed in time under Rule 75, rendering the deeming prayer unnecessary, but held that no plausible explanation was offered for the failure to file the record of appeal after proceedings were supplied on 3rd February 2021. The applicant also failed to annex a draft memorandum of appeal, leaving the court no material to assess his chances of success, and found the respondent would be prejudiced as she remained kept out of land the succession court found she was solely entitled to. The application was dismissed with no order as to costs since the respondent did not respond. The decision below was not disturbed.

Key legal issues

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01

Whether the delay in filing the record of appeal was satisfactorily explained

Holding

The explanation (loss of employment, relocation, Covid-19, loss of touch with advocates) was implausible given that proceedings were ready on 3rd February 2021 and nothing explained the failure to file the record thereafter

Reasoning

The court found the applicant's averments unsupported: no evidence of the dismissed stay application was annexed, the date of bespeaking proceedings was undisclosed, and no explanation was given for the failure to file the record of appeal after the proceedings were supplied on 3rd February 2021. Personal hardship does not excuse an inordinate delay without corroboration.

p. 2
02

Whether the appeal had sufficient chances of success

Holding

The applicant did not annex a draft memorandum of appeal or state his intended grounds, leaving the court no material to assess the prospects of the appeal

Reasoning

The chances of success are a discretionary factor under the Leo Sila Mutiso principles. The applicant merely asserted that his appeal had high chances of success without identifying any ground of appeal. The court held that bare assertion is insufficient; an applicant must indicate the intended grounds for the court to gauge the possibility of success.

p. 3
03

Whether the respondent would suffer prejudice

Holding

Granting the application would prolong the objector's exclusion of the respondent from land the succession court found she was solely entitled to

Reasoning

The court weighed prejudice contextually: the underlying dispute concerned land to which the respondent had been held solely entitled by the succession court, and she remained kept out of the property by the objector. Extending time would perpetuate that prejudice to the successful party.

p. 3

Legal principles established

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  • The principles for extension of time are the length of the delay, the reason for the delay, prejudice to the respondent, and possibly the chances of the appeal succeeding
  • An applicant for extension of time must show a plausible explanation for the delay, including the period after proceedings are supplied
  • To gauge the chances of success, the applicant must place a draft memorandum of appeal or grounds of appeal before the court

Court orders

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  1. 1.The application dated 4th May 2022 is dismissed
  2. 2.No order as to costs, as the respondent did not file a response

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 75

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi

    Setting out the principles governing extension of time applications

  • Vishva Suppliers Company Ltd vs RSR Stone (2006) Limited
    (2020) eKLR

    Relied on by the applicant in support of extension of time

On appeal from
High Court of Kenya at Kakamega
Succession Cause No. 558 of 2013
Jurisdiction invoked
Rules 4 and 42 of the Court of Appeal Rules, 2010 (extension of time jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Matendechere v Mutoko", Case Analysis (2022). Civil Application E62 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/880/eng@2022-07-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.